Abstract

In some jurisdictions punitive damages are generally considered appropriate and deterrent punishment for malicious or egregious behaviour; and for the vindication and compensation of rights and freedoms violated. In Fose v The Minister of Safety and Security, the South African Constitutional Court held that there was yet no place for punitive constitutional damages. The Court took a purist approach to the civil and criminal law divide. However, the court obiter stated that punitive damages against private corporations might be justified. In the light of the court's obiter statement and the judgment in Fose v The Minister of Safety and Security, the status of punitive damages appears to be now more vexed. Punitive damages notionally exist in South Africa despite the indication that, in general, punitive damages may not be recovered. Ideally, the South African position on punitive damages could be clarified through legislative intervention. The special features of such legislation should include a special liability trigger clause, and a clause controlling and limiting the amount of damages recoverable.